In a landmark judgment today, the Supreme Court struck down the 99th Constitutional Amendment for being ultra vires the basic structure of the Constitution. The 99th Amendment was intended to replace the “collegium” system, in which the three senior-most judges of the Supreme Court had the final say on judicial appointments, with a National Judicial Appointments Commission (“NJAC”) consisting of the law minister, two “eminent persons”, and the three aforementioned judges. In striking down the NJAC, the Court also held that the collegium system of appointments had revived, and was operative. Justices Khehar, Lokur, Goel and Joseph wrote separate opinions for the majority, while Justice Chelameshwar dissented.

In an extended debate earlier on this blog, I had argued that Articles 124A and 124C, introduced by the Amendment, ought to be struck down. I, therefore, agree with the conclusion of the majority. However, I would also submit – with respect – that the four majority opinions are flawed in some serious respects, and lay down propositions of law which are not adequately defended or justified. In this essay, I will give a brief account of the majority holdings, and their discontents.

Background

Let us briefly go over the background to this case. Under the old Article 124, the President was to appoint judges in “consultation” with the Chief Justice, and other such judges that he might see fit to consult. In The Second Judges Case, a nine-judge bench of the Supreme Court held that the word “consultation” was to be read to mean “concurrence”, and as a result, established the collegium system, which upgraded the judiciary’s role from a formally consultative one, to one in which the three senior-most judges of the Supreme Court had the last word (“primacy”) in appointments. The 99th Amendment was Parliament’s attempt to overcome the holding of the Second Judges Case by replacing Article 124 with a new set of constitutional provisions, which established the NJAC. Article 124A detailed the composition of the NJAC (see above). Article 124C delegated the details of the selection process to parliamentary legislation, in pursuance of which the legislature framed the National Judicial Appointments Commission Act. Both the 99th Amendment and the Act were ultimately challenged before a Constitution Bench of the Supreme Court.

Issues

As I had argued in my summary of the NJAC debate, the Constitution Bench would be required to answer the following questions:

124A: In light of the fact that the Second Judges Case is binding upon the present bench,

(a) Did The Second Judges Case hold that judicial independence affected by the nature or manner of judicial appointments?

(b) If yes, then did the Second Judges Case hold that judicial primacy in appointments is part of the basic structure, because it preserves judicial independence?

(c) If yes, then did the Second Judges Case also hold that judicial primacy in appointments is a necessary requirement for the protection of judicial independence?

124C: In light of the fact that under the Constitutional scheme, appointment of judges is a constituent power contained in the Constitution, is it consistent with the separation of powers to move it from the Constitution to the domain of parliamentary legislation? Can the power of the parliament be relatively aggrandised at the expense of the executive and judiciary?

None of the judgments (majority or minority) dealt with Article 124C and the separation of powers. On Article 124A, the four majority opinions, with varying degrees of emphasis and analysis, answered “yes” to each of the three questions.

Referral and Merits

Another preliminary remark, for the sake of clarity. During the course of arguments, the Union requested the bench to refer the matter to an eleven judge bench, in order to reconsider the correctness of The Second Judges Case (in my view, this would have been the correct thing to do). The Court, while declining immediate referral, indicated that it would fully deal with the question while handing down its final judgment. Consequently, the majority opinions of Justices Khehar, Lokur and Goel are divided into two parts: the rejection of the referral, and the finding of unconstitutionality (there is also a third part dealing with the question of whether Justice Khehar ought to have recused himself, but we can ignore that for now). This is somewhat unfortunate, because in the judgments, the considerations that weighed with the Court in declining referral tend to become blurred with the arguments on unconstitutionality, leading to a significant amount of confusion.

Let me explain. In rejecting referral, the majority is, in effect, stating that there are no good reasons to review The Second Judges Case. In doing so, the majority attempts to show that The Second Judges case was correctly decided insofar as, the collegium is consistent with the scheme of the Constitution. Now, whatever you think about this conclusion, it doesn’t even come close to answering the question of the 99th Amendment’s constitutionality. This is because the answer to that question depends upon whether the collegium arose only out of the Court’s textual interpretation of the word “consultation” (in which case, the parliament is entitled to amend Article 124, get rid of “consultation”, and simply remove the basis of The Second Judges Case), or whether the Court found it to be part of the basic structure (in which case, obviously, Parliament couldn’t amend it away). This was substantially in issue between the parties, and the judgments of Justices Lokur and Goel record it (while failing to substantially address the dispute).

In other words, the constitutionality of the collegium does not imply the unconstitutionality of the collegium. Unfortunately, however, the majority opinions, at various points, seem to be taking the latter as the natural consequence of the former. This, as I will attempt to show, damages the overall structure of the holding.

Justice Khehar’s Majority Opinion

Justice Khehar’s leading opinion (clocking in at 440 pages) provides, broadly, five reasons why the Second Judges Case was correctly decided. First, he argues that judicial primacy in appointments was repeatedly accepted by the Court since the case of Shamsher Singh. The First Judges Case, which held that the veto lay with the Executive, and which was overruled by The Second Judges Case, was thus a lone aberration in a continuous line of precedent (paragraph 60, referral opinion). Secondly, he argues that the collegium does not violate the constitutional scheme by effacing the participation of the Executive, since the President (acting on the aid and advice of the council of ministers) can still object to recommended names, provide his reasons, and so on: only the last word, in case of a stalemate, is with the collegium (paragraph 68, referral opinion). Thirdly, in the Constituent Assembly Debates, judicial appointments were specifically discussed in the context of judicial independence, making it clear that the constitutional scheme regards appointments as an integral part of judicial independence (paragraph 76). Fourthly, in the Constituent Assembly Debates, while the word “consultation” was being discussed, Dr. Ambedkar clearly stated that it was intended to “curtail the will of the Executive” (paragraph 78). Consequently, if the idea was to “shield” the appointments process from the executive, the Second Judges Case was correct in giving “consultation” a meaning that going beyond its dictionary equivalent (paragraph 79). At the same time, Dr Ambedkar was hesitant about giving a complete veto to one individual – the Chief Justice. The Collegium achieves the desired balance between the two positions, by placing primacy in the hands of a plurality of judges. And fifthly, consistent practice since Independence allowed the Chief Justice the final say in judicial appointments (paragraph 86).

While I have no quarrel with the proposition that judicial appointments are part of judicial independence, I find Justice Khehar’s fourth point particularly troubling. Justice Khehar moves glibly between “curtail the will of the Executive” and “shield the appointments process from the Executive”. The two, however, are not equivalent. As Justice Chelameshwar argues in dissent, the history of the Constituent Assembly Debates suggests that what the framers were worried about was preventing Executive dominance in the appointments process. This appears a more persuasive reading of the “curtailing the will of the Executive”, one that does not necessitate judicial primacy as a corollary.

Be that as it may, it is at this stage that Justice Khehar makes his major move. In paragraph 149 of his merits opinion, he says:

“... the word consultation… have to be read as assigning primacy to the opinion expressed by the Chief Justice of India (based on a decision, arrived at by a collegium of Judges), as has been concluded in the “Reference Order”. In the Second and Third Judges cases, the above provisions were interpreted by this Court, as they existed in their original format, i.e., in the manner in which the provisions were adopted by the Constituent Assembly, on 26.11.1949 (-which took effect on 26.01.1950). Thus viewed, we reiterate, that in the matter of appointment of Judges to the higher judiciary, and also, in the matter of transfer of Chief Justices and Judges from one High Court to any other High Court, under Articles 124, 217 and 222, primacy conferred on the Chief Justice of India and his collegium of Judges, is liable to be accepted as an integral constituent of the above provisions (as originally enacted). Therefore, when a question with reference to the selection and appointment (as also, transfer) of Judges to the higher judiciary is raised, alleging that the “independence of the judiciary” as a “basic feature/structure” of the Constitution has been violated, it would have to be ascertained whether the primacy of the judiciary exercised through the Chief Justice of India (based on a collective wisdom of a collegium of Judges), had been breached…”

In one word – the word “therefore” – Justice Khehar simply assumes away the core controversy! In the first part of the paragraph, he correctly notes that the Second and Third Judges Cases held that the word “consultation” meant primacy of the Chief Justice’s opinion. But if that was all that those cases said, then surely it is open to the Parliament to amend the Constitution, remove the word “consultation”, and take away the basis of those judgments – which is what it did. It must additionally and independently be shown that the Second Judges Case held that judicial primacy was part of the basic structure. As Vishwajith and Suhrith have argued on this blog, there is enough evidence in The Second Judges Case to militate against this conclusion (I have argued to the contrary). In either event, Justice Khehar’s assumption that everything after the “therefore” flows from everything before it, is misplaced: and this is the fulcrum of his decision.

After holding that judicial primacy in appointments is part of the basic structure, the rest follows more or less automatically. Judicial primacy in the NJAC is lost by the veto accorded to the “eminent members”; consequently, Article 124A and the Act must be held unconstitutional (paragraph 239). Justice Khehar also holds that the term “eminent persons” is unconscionably vague, and strikes that down as well (paragraph 182). Incidentally, he also states – while striking down the NJAC Act – that ordinary law can be challenged on the grounds of the basic structure (paragraph 220).

The Other Majority Opinions

The opinions of Justices Lokur, Joseph and Goel largely follow this structure, with a few variations. Justice Lokur points out additionally, for instance, that the NJAC not only diminishes the role of the CJI, but also that of the President, by converting his role from participatory to that of rubber-stamping the NJAC’s recommendations (paragraph 486), and that the presence of the Law Minister may skew the process (paragraph 516). Justices Joseph (page 899) and Goel (paragraph 18) hold – in clearer terms than Justice Khehar – that The Second Judges Case held that judicial primacy is part of the basic structure – but like him, they provide no analysis to buttress key claim. The amount of time all judges spend on showing that judicial primacy has been a long accepted constitutional convention makes me feel, once again, that mixing up the questions of referral and merits has led to a deeply confused judgment. Even if judicial primacy in appointments was a long-established constitutional convention, Parliament is entitled to change that through an Amendment. To invalidate the Amendment, you must show that judicial primacy is part of the basic structure. That claim is asserted. It is not demonstrated, either through through the text and structure of the Constitution, or through a close reading of the Second Judges Case.

Unfortunately, in what is otherwise a powerful dissent, Justice Chelameshwar also seems to miss this point: he too does not analyse the Second Judges Case for its holding. This is, of course, as important for him as it is for the majority – because if The Second Judges Case did hold that judicial primacy was part of the basic structure, Justice Chelameshwar, as part of a five-judge bench, would be bound by it.

Conclusion

What then are the key holdings of the majority? I would summarise them as follows:

(1) Judicial appointments, being an integral facet of judicial independence, are part of the basic structure.

(2) Judicial primacy in judicial appointments (with executive participation) is also part of the basic structure.

(3) The collegium allows for Executive participation while maintaining judicial primacy through the Collegium.

(4) The NJAC violates the basic structure by doing away with judicial primacy through its veto provisions.

What does this mean for the future? Parliament can, if it wants, bring in a new NJAC. But, in accordance with this judgment, judges will have to have the last word as part of that Commission – perhaps through an express veto power.

For the reasons I have provided above, I believe that the central claim of the majority, upon which all else turns, is unsubstantiated; and going forward, it constricts possibilities for a new commission by requiring judicial primacy in appointments. Perhaps this is what the constitutional scheme requires, but if so, it needed a strong defence. The majority has failed to provide that.

Many may feel that the Judiciary – and constitutional democracy in India – has dodged a bullet, and nipped the spectre of fascism in the bud. There might be some truth to that claim. But for those who feel that the collegium has been built upon foundations of naked power, and maintained through rhetoric, smoke and mirrors, this judgment will offer cold comfort. There might be some truth to that as well.